Non-partisan to the best of my ability.

I’ve held off as long as I could, but here are some of my thoughts about the controversy surrounding Judge Brett Kavanaugh. Although I have strong personal opinions, I’m not interested in airing them here. I post this as a lawyer based on my experience representing employers in sexual harassment cases and other situations where credibility is at issue.

No. 1: There is no “middle ground.” Christine Blasey Ford says she was sexually assaulted by young Brett Kavanaugh at a house party in the early 1980s. Judge Kavanaugh doesn’t say that it was a misunderstanding, and that he was drunk and fooling around and meant no harm — rather, he denies the incident completely. Dr. Ford and Judge Kavanaugh can’t both be right. 

No. 2: Men don’t always tell the truth, but neither do women. People “misremember,” and even lie. Regardless of gender. An employer investigating a “he said, she said” allegation needs to focus on facts and evidence, not whether the person making the allegation is a man or a woman.

Saying “believe the survivor” instead of “believe the woman” is equally fallacious. We don’t know whether the accuser is a “survivor” until we can determine whether the allegations are true.

No. 3: “He said, she said” is a credibility dispute, and that seems to be what we have here. If this controversy were in civil court, a judge or jury would have to decide who was telling the truth. If it were an internal complaint, the employer would have to make that determination. The fact finder could consider intangibles like tone of voice, eye contact, body language, and generally “trustworthy” demeanor. If that’s all you have, then that’s what you go with. But demeanor doesn’t always tell the whole story. There are poised and charming liars in the world, and there are nerdy truth-tellers with no social skills. More reliable ways to assess credibility include the following:

*Were there witnesses to the alleged conduct (or witnesses who deny that the alleged conduct occurred)? 

*Even if it’s not conclusive, is there any evidence that backs up even part of the individual’s story? For example, is there evidence of a house party in 1982-83 that young Christine, young Brett, and others attended? Was alcohol consumed? If so, that wouldn’t mean young Brett was guilty of sexual assault, but it would tend to provide at least some support for Dr. Ford’s story. 

*Did an individual claim that there were corroborating witnesses, but then the witnesses did not corroborate? (NOTE: this is not the same as saying there were no witnesses.) It’s possible that the witnesses who have failed to corroborate are lying, or intimidated, or trying to protect the other party, or whatever, but for the most part a claim of corroborating witnesses that does not pan out counts as a “debit” on the credibility balance sheet. And even more so if the non-corroborating witness would have been expected to side with the individual (for example, when the witness is a personal friend). That is a red flag.

*Is there proof that the individual has lied about other matters? Of course, the individual could lie about some matters and still be telling the truth about the matter at issue. But a history of lying is not a good sign.

*Does the individual have a motive to lie? One situation we encounter frequently in the employment law context is an employee who accuses a supervisor of harassment or discrimination right before the employee is about to be fired. From the point of view of the employee, the accusation of harassment or discrimination might protect the employee from termination. From the side of the accused, the desire for self-preservation can also obviously provide a strong motive to lie.

*Is the timing of the allegation suspect? The fact that an allegation is raised for the first time long after the alleged event doesn’t necessarily mean it didn’t happen. Sometimes there are good reasons for a person to delay making a complaint. But a long delay without a compelling reason does generally cut against the credibility of the accuser. A related question is whether the allegation seems to be “opportunistic” — in other words, if the allegation is old, has something recently occurred that would provide a motive to exaggerate or fabricate?

No. 4: What is the general reputation and character of the accuser? The accused? 

If, after assessing all of the above, the fact finder can’t determine who is telling the truth, then the accused individual should get the benefit of the doubt. When this happens in the context of a sexual harassment complaint in the workplace, the employer will generally treat the allegation as “unsubstantiated” (not “false”), will inform both parties of that finding, and will invite the accuser to come forward if more evidence comes available or if anything occurs in the future. No action will be taken against the accused individual, with the possible exception of a reminder about the employer’s policy against harassment.

If there is reason to believe that the allegation was deliberately false rather than unsubstantiated or just mistaken, then the employer should investigate the alleged false allegation. If the investigation conclusively shows that the accuser deliberately made a false allegation of sexual harassment, then the employer should take action against the accuser. This doesn’t happen very often, but it does happen.

Returning to the Ford-Kavanaugh situation, here are some arguments and allegations being made that I think have no merit. They’re either conclusions that are not supported by the evidence, or they’re allegations that do nothing to prove or disprove whether a sexual assault actually occurred: 

*”Judge Kavanaugh drinks too much.” Judge Kavanaugh admits he drank to excess in his younger days. Big whoop. I haven’t heard any indication that his heavy drinking continued past his earliest days in college.

And another thing — I’m not an expert on alcohol abuse, but I think there is a difference between (1) drinking until you fall asleep, (2) drinking until you pass out, and (3) having an alcohol-induced blackout. (I was going to Google this, but I was afraid of what Google would think of me if I did.)

If you’re asleep or passed out, it would be impossible to sexually assault anyone because you would be not only “not conscious” but also physically incapacitated. The third, a real “blackout,” would allow one to continue being active (including committing a sexual assault) while not necessarily realizing one was doing it or remembering anything about it afterward. From what I can gather, the evidence is that young Brett may have been guilty of 1 and 2, but not 3. Only 3 would be compatible with a sexual assault that the Judge didn’t remember.

Also, from a purely evidentiary/fact-finding standpoint, it isn’t reasonable to accuse someone of having blackouts without any evidence and then challenge him to prove that he didn’t black out. So, I think we have to accept Judge Kavanaugh’s word that he did not ever black out while drunk. 

*”Judge Kavanaugh’s anger shows that he has a poor ‘judicial temperament.'” If Judge Kavanaugh was sexually assaulting women, then he should not be on the Supreme Court or the D.C. Circuit — no matter how lovely his “temperament” is. On the other hand, let’s assume, solely for the sake of argument, that false allegations were made against him for political reasons — to delay filling Justice Kennedy’s seat until after the November elections and to prevent the Supreme Court from having a conservative majority. In the past couple of weeks, Judge Kavanaugh has been accused of sexual assault, exposing himself, and gang rape. It has also been implied in the media that he is a potential child molester. Would anyone really expect him not to be angry at these accusations? If he were calm, I’d be wondering about him.

*”Judge Kavanaugh will never be able to rule impartially because of what has happened in the past couple of weeks.” Assuming he is not guilty, I would expect a jurist of Kavanaugh’s caliber to be able to keep his personal feelings from intruding into his judicial decisions. (If not, then maybe using scorched-earth tactics to block a Supreme Court appointment — assuming, solely for the sake of argument, that this is what was done — was a poor long-term strategy.) 

*”Dr. Ford is unreliable because she was co-author of an academic paper on self-hypnosis.” This was supposed to be a blockbuster against Dr. Ford. She was actually one of nine “sub-authors” on the article in addition to the two primary authors (11 authors in all). Dr. Ford’s subspecialty is designing statistical models for research projects, so I would assume “statistical modeling” was her role in this project. And even assuming (solely for the sake of argument) that she did hypnotize herself before she testified in the Senate, what’s to say she didn’t do it only to calm her nerves rather than to “hypnotize” herself into committing perjury?

*”Dr. Ford is dishonest because her ex-boyfriend says she cheated on him and ran up unauthorized charges on his credit card after they broke up in the ’90s and stopped only when he threatened to report the activity to fraud prevention.” Maybe, but (1) this is coming from an ex-boyfriend, who may have his own motives, and (2) for the same reason that I don’t like allegations against Judge Kavanaugh based on his alleged behavior in the early 1980s, I don’t like allegations against Dr. Ford based on a breakup with a boyfriend that occurred in the 1990s.

People, can we focus on the current Millennium?

On a more cheerful note, this will all be over — for better or worse — by Sunday. For that, we may be grateful.

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.


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